For decades, presidents and their appointees have misused the classification system to conceal waste, fraud, abuse, and even criminal conduct, failing to properly manage classified federal records generally.
That is why a new bipartisan effort to deal with this major executive branch misuse of power is both remarkable and welcome.
The solution offered by Senate Homeland Security and Government Affairs Committee Chairman Gary Peters (D-MI) and senior Senate Judiciary Committee and Select Intelligence Committee member John Cornyn (R-TX) is the Classification Reform for Transparency Act of 2024 (S. 4648). If enacted the bill would, for the first time in U.S. history, prohibit an executive branch official from misusing the federal government’s document classification system to hide various forms of misconduct.
When I testified before Chairman Peters’ committee in March 2023, this was among my top three reform recommendations, and I’m deeply grateful Senators Peters and Cornyn have embraced the overarching idea because it’s been badly needed for literally decades. While there are literally dozens of examples to justify such a change in law, just two from the post-9/11 era should suffice to make the point.
As I’ve testified elsewhere, in the days immediately following Al Qaeda’s terrorist attacks on America, then-National Security Agency (NSA) Director General Michael Hayden authorized NSA personnel to intercept all communications between the U.S. and Afghanistan for a 30-day period. There was just one very big problem: under the Foreign Intelligence Surveillance Act (FISA), Hayden had no lawful, unilateral authority to take such action.
Hayden needed to go to the Foreign Intelligence Surveillance Court (FISC) and get approval for such electronic eavesdropping since it clearly implicated the Fourth Amendment rights of Americans. Instead, he ordered the surveillance anyway and used the classification system to keep his decision from becoming public – a tactic that worked for over four years until the New York Times exposed it in December 2005. That revelation sparked an over two-year battle to make Hayden’s illegal mass surveillance program nominally constitutional (at least in the view of federal courts), which is how we got the controversial and still serially-violated 2008 FISA Amendments Act.
The second example involves Julian Assange and WikiLeaks.
One of the most graphic and shocking items then-Army intelligence analyst Chelsea Manning shared with Assange and WikiLeaks was U.S. Army AH-64 Apache helicopter gunship video of the murder of Iraqi journalists working for Reuters. Army officials used the classification system to conceal that war crime, something that under the Peters-Cornyn bill would become a federal crime. It is beyond outrageous that those who exposed that war crime and its attempted cover up were the ones subjected to Department of Justice prosecution, not those who committed the war crime.
There is, unfortunately, one important caveat about this seemingly ground-breaking legislative effort. The bill leaves the development of penalties for misusing the classification system in the hands of the very people who let such misuse slide for decades: senior Executive branch officials themselves.
While Section 6 of the bill requires each executive branch agency or department to develop “remedial measures or administrative” penalties for misusing the classification system and requires audits to detect such misconduct, senior agency and department officials have a vested interest in minimizing such incidents because of the embarrassment and potential political fallout they would cause. As drafted, it doesn’t appear the bill would achieve the effect that Peters and Cornyn are seeking in this area.
Should this bill actually proceed to mark up, it would be imperative for Section 6 to be revised to make misuse of the classification system at least a federal misdemeanor, if not a federal felony. Only the credible threat of prosecution for such misconduct will truly be an effective deterrent. The unelected bureaucrats and political appointees at the CIA, NSA, FBI and elsewhere in the federal intelligence and law enforcement community should have absolutely no say whatsoever in this matter.
The bill would also put a 50-year limit on how long any document could be classified, requires federal employees to put in writing why they classified a particular document, and creates a new federal task force to try to come up with a more rational and manageable executive branch classification system to rapidly declassify the tens of millions of old and rapidly aging records at federal agencies and departments.
As Peters noted in his press release on the bill, “We are facing an overwhelming backlog of hundreds of millions of pages awaiting declassification and experts telling us that 50 to 90 percent of classified materials could be made public without risk to our national security.”
It will take separate action by Congress to mandate the declassification of such a volume of records. Fortunately, prior congressionally mandated declassification laws like the JFK Assassination Records Collection Act and the Nazi War Crimes Disclosure Act and the Japanese Imperial Government Disclosure Act provide successful models for achieving that goal.
While it would have been preferable to see Peters and Cornyn include such a provision in their bill, it nonetheless represents a welcome initial step forward in reining in out-of-control executive branch abuse of the federal classification and records management system.
It’s encouraging to see that despite the current national mood of pessimism and political rancor, there are still legislators in Washington trying to tackle big problems in a bipartisan way.
Former CIA analyst and ex-House senior policy advisor is a senior fellow at the Cato Institute.
